Extraordinary Rendition–Convictions

It’s been awhile since extraordinary rendition has been in the news, but the Italians have done something that is both unexpected and not surprising.  It’s unexpected because it isn’t often that CIA agents are convicted of anything anywhere, and it’s not surprising because they were tried in absentia.

The convictions involve 23 CIA agents who allegedly kidnapped a very influential Italian Imam–Abu Omar–off the streets of Milan, and then sneaked him off somewhere, where he was then allegedly tortured.  The Italians have, from time to time, thought of having the agents extradited from the United States, but nothing ever came of that (mainly because the Secretary of State would never authorize the extradition, and it would cause diplomatic friction, so Italian authorities never pursued the matter).  In lieu of that, then, the Italians opted to try the agents in absentia and now they have been convicted.  (Link)  It really doesn’t mean a whole lot from a practical perspective other than that the agents are pretty much barred from going to Europe now.

Extradition from Britain–Gary McKinnon? Maybe Not

Those of us who follow international extraditions are quite familiar with the tale of Gary McKinnon.  Mr. McKinnon, if you don’t know, is the British man charged in 2002 with hacking his way into government and military computers in the United States.  He claims he was searching for proof of UFOs, which, let’s be honest, who isn’t?

In any event, despite being determined to be extraditable, and losing a number of appeals along the way, he appears to have received yet one more slight reprieve.  According to PC World, the Home Secretary has received evidence that Mr. McKinnon has severe depression and Asperger’s syndrome, and as such, extradition would be harmful to his health.  This argument has been made previously throughout all the hearings, along with the argument that there was no guarantee that he wouldn’t just be shipped off to Guantanamo. So, while this isn’t an unexpected development, it will be interesting to see how the Home Secretary rules on this case.  If Mr. McKinnon is ordered to be extradited, he has 14 days to appeal to the European Court of Human Rights.

IEEPA, Ireland, and Iran

The United States Department of Justice has announced that an Irish firm has been charged in a 25-count indictment for providing “sensitive technology” to Iran.  (Link.)  The charges are broken down like this:  there are two counts of conspiracy, nineteen counts of violating the International Emergency Economic Powers (IEEPA) Act, four counts of false statements, and forfeiture allegations.

The defendants in the case are: Mac Aviation Group; Thomas McGuinn; Sean McGuinn; and Sean Byrne.  All entities and people are located in Ireland, it appears. How then, does the United States find its extraterritorial jurisdiction, which expanded greatly under the Bush Administration?

According to the DOJ presser, it is alleged that helicopter engines and other aircraft components were purchased from U.S. firms and then transshipped to Iran using companies in Malaysia and the United Arab Emirates.  The engines were manufactured by Rolls Royce in Indiana, and the “other aircraft components” include 50 “‘5th stage vanes'” and 32 bolts.  Yeah, bolts.

IEEPA is a tough little statute.  1977 Congress passed the legislation and, while it sought to clarify the President’s powers, it nonetheless gives the President an enormous amount of power.  One of these powers is to issue regulations relating to trade, including foreign entities which transship American products, and if a person violates those regulations, he can be punished with up to 20 years in prison.  See 50 U.S.C. § 1705(b).

One other thing: an AP story, which I think has been expanded in the Irishtimes.com, states that the United States is seeking the arrest and deportation of the individuals.  It would be awfully surprising if Ireland “deported” its own citizens to the United States for trial.  What is likely meant is “extradition,” which is a vastly different process.  And it’s worth noting, too, that Ireland has a reputation as a troublesome extradition partner of late, though that may be changing.

The Death Penalty and International Extradition

The vast majority of the world’s countries have outlawed the use of the death penalty.  (Source: Amnesty International.)  The United States, of course, is not among those countries.  Mexico, however, is among those countries.  However, that may be changing.

According to Marion Lloyd of the Houston Chronicle, “Mexican legislators are opening the way for what promises to be an emotional debate on whether to reinstate the death penalty.”  The proposed reinstatement would be applied to kidnappers who kill their victims.

The impact this might have on extradition between the two countries is pretty stark, as Llyod points out: “A 1978 extradition treaty with the United States allows Mexico to deny extradition if a suspect faces the death penalty in another country.”  Indeed, this is the case.  In fact, until recently, in extradition requests, the United States had to agree not to even impose a life sentence because the harshest penalty used to be a maximum of 30 years in prison; that changed in 2005 when Mexico approved certain life sentences.  (Source: BBC, among others.)

Changing the law in Mexico to allow the death penalty could potentially remove the requirement that the United States seek at most life imprisonment for extradited individuals.

And just to be clear: most extradition treaties between the United States and other countries allow those countries to deny extradition if the death penalty is sought.  (This leads to the United States promising not to seek or impose the death penalty if the individual is extradited.)  Those same treaties also allow the United States to refuse extradition on the same basis, but the United States rarely has such qualms, even if the individual wouldn’t be subject to the death penalty in the United States.  (See, e.g., Prasoprat v. Benov, 421 F.3d 1009 (9th Cir. 2005) cert. denied 546 U.S. 1171 (2006) (individual can be extradited to Thailand for drug crimes even though he faced the death penalty, which would not imposed in the United States).)

Swiss Banking Follow-up

Mentioned the other day that the US is gearing up to go at Switzerland hard.  Now it looks like the first broad-side managed to rip some rigging loose.  According to the WaPo, thousands of “UBS clients have been receiving calls and letters telling them that their Swiss accounts will soon be liquidated.”  Apparently, some of the clients are even being told by UBS to contact the IRS and file amended returns.  Most commentators suggest that this is the beginning of the end of the legendary secrecy that makes Switzerland so attractive.

As a related matter, a nice extradition battle looms for Raoul Weil, the individual whose indictment seems to have sparked the freakout at UBS.  Traditionally, Switzerland has been somewhat reticent to extradite based on tax issues, not to mention the fact that Switzerland is not compelled to extradite its own citizens.  The Times of London has a nice run-down on some of the issues involved.  Of course, if Switzerland declines to extradite, he will still potentially be land-locked, as Interpol has no doubt been notified of the charges, and a Red Notice presumably issued, which will alert member countries that an indictment is out there.  While a Red Notice is NOT (can’t stress that enough) a so-called “arrest warrant,” it does often serve as basis for a provisional arrest in an extradition setting.

Extradition from Canada

International extradition is one of those processes that always generates a lot of interest.  Part of this, I suspect, is the word “international,” but it can’t be denied that there’s something awful (using the old sense of the word, here) about the power of a government to seek out and retrieve an individual from another country.  Of course, going through legal processes is far preferable to the alternatives the United States has used in the past, namely, simply kidnapping or tricking the individual.  See Alvarez-Machain and Yunis, for example.

According to KY3.com, a Springfield, Missouri man has been located in Winnipeg, Canada, having allegedly fled the country after being indicted by a federal grand jury for allegedly attempting to use a minor to engage in sexual conduct and for allegedly receiving child pornography.  The article suggests that the individual will attempt to seek asylum in Canada, but assuming that he won’t receive it, extradition will be conducted under the direction of the 1974 bilateral extradition treaty (entering into force on March 22, 1976, and amended on January 11, 1988 and again on January 12, 2001) between the United States and Canada.  This treaty provides for extradition on a dual-criminality basis, which means that the charges for which extradition is sought must be crimes in both countries.